GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v PHILLIPS [1992] NSWCA 90

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v PHILLIPS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, CLARKE and CRIPPS JJA 15 June 1992, 27 August 1992 [1992] NSWCA 90

PRACTICE and PROCEDURE — pleading — specificity of — defence of inevitable accident — motor vehicle collision allegedly caused by cerebral haemorrhage of insurer's driver — driver dies in collision insurer originally accepts liability under Transport Accidents Compensation Act 1987 and Motor Accidents Act 1988 — but insurer files defence to Supreme Court claim denying negligence subsequently, insurer seeks consent to filing an amended statement of defence raising a specific defence of inevitable accident — consent refused — cross-motions for dismissal of defences of liability and leave to file enlarged defence of inevitable accident — Sharpe J strikes out defence and refuses leave to insurer to file specific defence of inevitable accident — held: (Granting leave to appeal and allowing appeal): (1) Even if defences of estoppel or waiver were available, they were not appropriately dealt with by peremptory dismissal of the defences properly filed by the insurer which remained for trial. Remmington v Scoles [1897] 2 Ch 1 (CA) applied; (2) The denial of negligence in the defence as filed permitted the insurer by the common law to rely on a defence of inevitable accident. Jockel v Jockel (1963) SR (NSW) 230 (FC) applied; (3) The filing of a specific defence was desirable to avoid surprise or prejudice; (4) The discretion of the primary judge had miscarried; (5) Accordingly, his orders should be set aside and there should be substituted orders providing for the restoration of the defence; leave to file the specific defence of inevitable accident; and leave to the plaintiff to replead her reply to raise any grounds for resisting the defences susceptible to a trial on the merits.